It had to happen, but it still came as a terrible shock. Never before has the Court of Appeal substituted its own view for that of a libel jury. However, on 18 January the Court of Appeal decided that the £85,000 damages awarded to former footballer Bruce Grobbelaar against The Sun should be set aside on the grounds that the jurors' decision was perverse.
The Sun's editor David Yelland hailed the ruling as a "momentous vindication of The Sun", and claimed that the newspaper had saved English football. Hardly – but the decision is certainly momentous.
Appeals in libel cases are infrequent. Logically, only in extreme circumstances should a Court of Appeal, consisting of judges not present at the trial, interfere with the jurors' decision. All the more so in a case lasting 16 days where George Carman QC was defence counsel. The most common reason for appeal is misdirection, where the judge has wrongly deprived the party of a fair trial. There have also been cases where jurors have behaved improperly, such as deciding on an award by lot. The conduct of the claimant/plaintiff may also come into question, as in the recent case of Hamilton v Al Fayed. However, although appeals have been made before against a jury verdict because it was perverse, this is the first time it has been upheld.
In the Grobbelaar judgments, their Lordships described the jury's decision as an "affront to justice" and Grobbelaar's evidence as "quite simply incredible". Lord Justice Simon Brown summed up by saying: "It is, I think, the experience of all of us that juries from time to time do arrive at perverse verdicts."
Many editors and journalists will have reacted to that understatement with disbelief, and not without good reason. For them, the real surprise is that this has not happened before. There have been numerous other cases where awards have been made to plaintiffs who were obviously on the make, and who received the support of the jury largely as a result of their celebrity status.
In the 1980s, when libel awards spiralled out of control, newspapers were on the back foot. Part of the problem is that juries have never liked newspapers and their techniques, so they set out to punish them, even though they should be compensating the plaintiff and not penalising the defendant. The editors and journalists who in the past were unjustly victims of huge awards will be drinking champagne after the Grobbelaar judgment.
But does this sound the death knell for the jury in libel actions? Their Lordships were very clear in emphasising that their decision was reached with the greatest reluctance. Lord Justice Brown said he would allow the appeal, but also said: "I confess to doing so with misgivings… not because I entertain the least doubt about Mr Grobbelaar's guilt, but rather because the court must inevitably be reluctant to find a jury's verdict perverse and be anxious not to usurp their function." So it seems that juries are safe in this exclusive area of civil law, and libel disputes will remain unique as the only civil law cases decided upon by a jury.
What is clear, however, is that jury verdicts are no longer beyond reproach. Newspapers can take considerable comfort from the decision, but they should not be misled into thinking that it is now a different ball game in the libel courts. It isn't. It is a sign that the courts are prepared to take action where they see injustice, and an awareness that a number of individuals and companies have got away with all sorts, and perhaps an indication to judges in charge of jury trials that they must ensure that their jurors carry out a proper balancing exercise. Hopefully, this will result in better justice for all parties in libel disputes, rather than an own goal.
Roderick Dadak is head of defamation at Lewis Silkin